Supreme Court decision on the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill

On 13 December 2018 the UK Supreme Court handed down judgment in relation to a challenge to the legislative competence of the Scottish ‘UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill’ – a decision which has significant implications for the relationship between Brexit and devolution.

The Supreme Court unanimously held that the Scottish Bill is not, as a whole, outside of the legislative competence of the Scottish Parliament, particularly insofar as it regulates certain legal consequences of the cessation of EU law as a source of domestic law. However, the Court went on to hold that certain provisions would be outside of its legislative competence as they would have the effect of modifying the Scotland Act 1998 ,and others were in breach of the EU (Withdrawal) Act.

As outlined in our previous post, the Attorney General and the Advocate General for Scotland sought a declaration from the Court as to whether the Welsh Assembly’s ‘Law Derived from the European Union (Wales) Bill’ (Welsh Bill) and the Scottish Parliament’s ‘UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill’ (Scottish Bill) are within the competence of the respective devolved administrations. However, the reference in relation to the Welsh Bill has since been withdrawn following an agreement being reached between the UK Government and the Welsh Assembly.

One of the most contested sections of the Scottish Bill was section 17, which relates to subordinate legislation made in respect of retained EU law which would, if contained in statute, be within the competence of the Scottish Parliament. As drafted, section 17 would require Scottish Ministers to give their consent to any such subordinate legislation, without which the legislation would be of no effect.

The Court found that section 17 of the Scottish Bill would be outside the legislative competence of the Scottish Parliament. It held that this would modify the Scotland Act 1998, most notably section 28(7) which states that the (UK) Parliament has unqualified legislative power in Scotland: section 17 would have made the legal effect of subordinate legislation made by the UK Government conditional on the Scottish Minister’s consent. However, the Court rejected the wider argument that section 17 would affect Parliamentary sovereignty if it became law as the UK Government would still be able to exercise their sovereignty so as to disapply or repeal it.

The Court also considered that several other provisions of the Scottish Bill provisions in the Scottish Bill to be out of the legislative competence of the Scottish Parliament on the basis that they amounted to modifications to the EU (Withdrawal) Act. This was so notwithstanding that they would otherwise have been valid when passed in March 2018, before the EU (Withdrawal) Act came into force .

It will be noted that the EU (Withdrawal) Act was passed notwithstanding the absence of a legislative consent motion from the Scottish Parliament. Under the Sewel Convention, changes to legislation affecting devolved powers are normally subject to the passing of a legislative consent motion by the parliament concerned, although in R (on the application of Miller) v Secretary of State for Exiting the EU, the Supreme Court confirmed that notwithstanding the importance of the convention, legally, parliamentary sovereignty allows the UK Government to repeal or amend legislation without such consent.

The offending provisions of the Scottish Bill include:

sections 2(2) which would maintain the effect in Scots law of EU-derived domestic legislation, including “any enactment so far as … relating otherwise to the EU or the EEA”, on and after exit day;

Section 5 which would provide that the general principles of EU law and the Charter of Fundamental Rights would be part of Scots law on or after exit day so far as they have effect in EU law immediately before exit day and relate to EU law which sections 2, 3 and 4 would save or incorporate into Scots law;

Section 10(2), (3)(a) and (4)(a) which would concern the interpretation of retained (devolved) EU law;

Section 11 which would empower the Scottish Ministers to remedy by regulations deficiencies in retained (devolved) EU law arising from the withdrawal of the United Kingdom from the EU.

The decision confirms that, in many instances, the EU (Withdrawal) Act will determine how changes to retained EU law which falls within the devolved competences can be made. From a legal perspective, this provides important clarification, even if it the political debate over devolution continues.

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